# Fuller v. Buhrow

> Supreme Court of Iowa · May 21, 1980 · 292 N.W.2d 672

URL: https://www.frixlaw.com/law-library/cases/9740200

## Case

- **Full name:** Elrita FULLER and Harold Fuller, Appellants, v. Alfred A. BUHROW, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** May 21, 1980
- **Citations:** 292 N.W.2d 672; 1980 Iowa Sup. LEXIS 862
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Allbee, Division I, Division II, Harris, Larson, LeGRAND, McCORMICK, McGIVERIN, Rees, Reynold-Son, Reynoldson
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9740200

## Opinion text

*678 McCORMICK, Justice
(dissenting in part).
I concur in division II but dissent from division I.
The doctrine of contributory negligence was established by the court in fulfilling its institutional responsibility to declare the common law. This institutional responsibility includes the duty to abandon precedent when it is discredited by experience. Common-law principles are neither immutable nor infallible, and the genius of the system is its capacity for growth and adaptation. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974). We have previously refused to perpetuate obsolete judge-made doctrine merely for the sake of avoiding a departure from the past. See Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117, 121 (Iowa 1973).
Today the court recognizes that the doctrine of comparative negligence is superior to that of contributory negligence. Respected authorities who have analyzed and studied the subject for years have come to a virtually unanimous conclusion that for reasons of fairness and justice the comparative negligence doctrine should be adopted. We have the example and experience of a growing majority of states to guide us in making the change. We have an advisory committee to assist with any necessary rule revisions.
If the legislature wishes to disapprove our common-law decisions and rule changes, it has the right to do so, but the mere .existence of that right should not chill the court’s initiative in making the changes. We ought to put our own house in order. It is neither necessary nor appropriate to defer to the legislature in the first instance.
I would adopt the doctrine of comparative negligence for application in this case and prospectively.
REYNOLDSON, C. J., joins this dissent in part.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9740200. Public record. Not legal advice.